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dam honorarium; a present, not a payment; and they are not recoverable by legal suit if not paid, nor subject to repetition when they have been paid Thornhill v. Evans, 2 At. 332. 3 Bl. Comm. 28. Turner v. Philips, Peake's cas. N. P. 122. Chorley v. Bolcott, 4 term rep. 317. The fees of physicians are on the same footing; but this rule does not extend to surgeons, apothecaries, attorneys, solicitors or proctors, who may demand by this action pay for their services. In the courts of Pennsylvania the practitioners act in the capacities of attorneys and counsel also, and can demand fees as I apprehend, in the former capacity only. But if a fee be given as a consultation fee, a retaining fee, or for legal advice, these will be sufficient considerations to prevent the repetition of it. That a fee may be recovered from an attorney in whatever capacity acting, paid beforehand for the performance of business not subsequently performed, has been directly determined in our courts. At Rome, the counsel ( Defensores) were the Patroni, who were the orators and pleaded the cause: Advocati, assistant counsel: Procuratores, proctors, managed the affairs of absent clients under special authority: the Negotiorum Gestores, were agents, or attornies in fact,” under a general appointment: Cognitores, transacted the business of clients who were on the spot. For a long time, the patroni, received no fee as such for any particular cause ; but it was the custom for their clients to make them presents, and bequeath them legacies. Cicero mentions it to the honour of Luculius, that he received great sums in this way; and boasts that he himself had gained by this single article about £200,000. sterling. Nepos also mentions the sums so given to Atticus, as much to his credit. Middleton's life of Cicero, V. 2. p. 514. In the time of Cicero, only one counsel was allowed on a side: hence he occupied four days in his oration pro Cluentio, according to Pliny, Ep. L. 1 Ep. 20. In the time of Pliny the younger, there were two allowed in cases of impeachment: but they had their portion of time assigned to them. Plin. Ep. L. 2 Ep. and Lib. 4. Ep. 9. In his time also, they received fees; and the senior counsel were accustomed to take into causes, the younger members of the bar. Ib. Lib. 6 Ep. 23. But by some of the later emperors the practice of taking fees, was strictly prohibited. In Justinian’s time the fee Proemium, Honorarium, was not to exceed 100 aurei, for each cause. Dig. 50. 13.1. 12. But if nothing was given or promised, they might sue for a reasonable compensation. Their office was publici juris, and they might be compelled to act. Cod. 2. 6. 7. Cod. 1. 16. 7. Dig. 3. 1. 4. Students underwent an examination

Cod. 2. 8. 3. Cod. 2. 7.8 and 17. If counsel used abusive language, or defended their client by false statements, or betrayed his cause, (Pravaricatores) they were suspended, removed or otherwise punished. Cod. 2. 6. 6. Dig. 48. 10, 13. 1 Cod. 3. 1, 14. Cod. 2. 7. 1. There was a treasury advocate, similar to our attorney general ; a salary officer, employed in public prosecutions. Cod. 2.9. 4 and 10. 11. 5. Notorious criminals were not allowed advocates. Cod. 3. 12. 8. this seems to be the origin of the English practice, where counsel allowed to a defendant in a criminal cause, is ex gratia. Criminals were bound to appear. Dig. 48.1. 3. In England, and in this country also, as I presume, the courts intersere in a summary way respecting the conduct of the bar. Turner v. Philips, ub. Sup. Money had and received will lie for premiums paid on marine insurance, in cases dependant upon condition—where no risk has been run—&c. &c. whereon consult 2. Comyns Contr. 86. and the compilers on insurance for references to the cases, Park, Marshall, &c. The Action lies to recover back money paid on an illegal contract not executed, and when the suit aids the spirit of the law, by proceeding in disaffirmance of the contract. Sce the cases collected by Comyns, 2 Com. Contr. 108. et seq. SoMETIMEs the right to an office may be tried by indebitatus assumpsit against the present holder of it, to recover the legal fees received : and here also I refer to Comyns's collections of the cases; which I have adopted, not for the purpose of borrowing from a book that deserves to be popular among the profession, but because his arrangement gives me an opening for observations that I can the more appropriately introduce. I wish money had and received, had been brought long ago for fees, in cases of removals from office, by the governors of this state ; for there are so many objections to the practice, that I cannot consider the right of removal as fully settled even at this day. It is indeed a crying evil; tending in the last degree to degrade and demoralize the political character of the citizens; exciting and fostering an inexorable spirit of political party, of selfish and insidious hostility, of avaricious and ambitious turbulence, destructive of private harmony and and public confidence, and it threatens to fill the offices that ought to be the rewards of knowledge, experience and good character, with men who have nothing to recommend them but noisy insolence and servile

ignorance. I most sincerely wish the constitution itself could be freed from the imputation of giving sanction to this practice. Therefore, whatever may be the result of the attempt, I shall offer a few considerations to show that some doubts may be entertained, whether a fair construction of that instrument will justify the practice in question. By Section 8. Article 2. of the constitution of Pennsylvania, the governor has a general power of appointing “all officers, whose offices are established by that constitution, or shall be established by law, and whose appointments are not otherwise provided for.” Can he make an appointment for a less term than for life, under the power thus given to him by the constitution 3 For he has no other power in this respect, than what he derives from the words above quoted. The law of April, 3, 1804, ch. 2501, contains nothing to affect this question. The constitution is a part of the law of the land; and must be con'strued according to the common rules of construing all legal instruments assigning powers, conferring privileges, or enjoining duties; to wit, in the way most likely to promote the public good, and least likely to infringe on the liberties of the people. The governor of the state is (not the servant, but) the agent of the people : and his powers, privileges, and duties, are to be construed, not in the way most serviceable to his interest, but to their's. Premising these observa

‘tions, I submit to the reader, that 1st, A power to appoint to an office that is vacant, does not imply

a power to remove from an office that is filled. 2ly, A power to appoint to public offices becoming vacant, is necessary to the public good, which requires them to be filled: but the power to remove a deserving officer, may serve to gratify private animosity, or promote electioneering interests, or remunerate electioneering services, but it is not necessary for the public good. The public interest, requires no other condition to the appointment, than bene se gesserit, so long as the person appointed shall behave himself well. 2 Anstruth. Rep. 630. 621. Deverell's case. 3dly, A power to appoint generally, does not imply a power of removal according to modern, as well as ancient decisions. Co. Litt. 233. a. b. 1 Sid. 74.2 Anstr. 619. Marbury v. Madison, 1 Cranch 157. et seq. : this latter case seems to me to afford strong reasons in favour of my position. See also 3 Mass. rep. 160. 4ly, A power to appoint generally, will not authorize a special appointment. This follows from the known doctrine of the law, that every power and authority vested in an individual by law, must be

strictly pursued, and strictly construed : and the mode of appointment (where power of appointment is given) must follow the terms of the power. Marbury v. Madison, 1 Cranch 157. 162. 174. Com. Dig.

Poiar. 5ly, A power to appoint generally, amounts to a power to appoint

for life, or quam dui bene se gesserit. For if no term of limitation be made, how can the office legally terminate, but by death or misbehavior: This indeed, seems to follow of course. The law expressly is, that grant of an office quam diu benese gesserit, and grant for life, amount to the same. Co. Litt. 42. 3 Inst, ch. 12 p. 117. 1 Show. Rep. 510. 523. 531. 536. Harcourt v. Fox. 6ly, A power to appoint either for years, or durante bene placito, implies a coextensive power of removal, ex vi termini. For the same reason, a general power of appointment, so far from implying, negatives such a power of removal. More especially as it is the settled legal construction of such a general power, that when executed it is for life, or which is the same, during good behaviour. 7ly, The constitution furnishes no words that clearly give an uncontrolled power of removal. If it be not given, it cannot be taken. Powers cannot be assumed by construction, or implication, unless where they are absolutely necessary to effectuate the purpose enjoined by the instrument conferring them: and even this case admits of some doubts. In the case before us, if an office be already filled by a competent officer, the purpose of the constitution is fully answered. The public good requires no further interference. This reasoning holds stronger in the case of an executive magistrate of a republic, whose powers and privileges should be cautiously defined, and strictly construed in favorem libertatis. I know of no encroachments so dangerous, as constructive powers. 8ly, I would urge, that every office is an estate, a freehold : of which according to the known principles of law, no man can be legally deprived but for some cause known to the law. This is considered as a point settled in Harcourt v. Fox, 1 Show. ub. sup. 9ly, This practice, is contrary to all the analogy of offices, concerning which the governor has not this power. For misdemeanor in office, a judge may be impeached. Tor gross misconduct out of office, ascertained by verdict in court—for mental or bodily incapacity, he may be removed by address. Conviction by indictment of an infamous of fence will furnish cause to displace a justice of the peace. But no conviction, no offence is so efficacious to remove an officer of the land office, a Prothonotary, a Clerk of the Sessions, of the Orphans Court, of the Supreme Court, a Register, or a Recorder, as an offence against the good will and pleasure of the governor for the time being. Nor can any degree of knowledge, capacity, industry or integrity, retain such a man in office, who happens to have exercised his indubitable right of suffrage against the opinion of a successful chief magistrate. . Surely, it could not have been intended that the innocent or conscientious exercise of the most important right that a freeman possesses in a representative government, should be convertible into a crime sufficient to divest him summarily of his vested freehold, and deprive him and his family of their support, without accusation, without proof, without trial, at the arbitrary will and pleasure of a governor. And this is not an imaginary case ; but what happens almost universally on a contested election for a governor; and is become so common, that the depravity of public opinion begins to consider as right, this iniquitous system of political warfare and corruption. 1Oly, In every grant, whether of a chattle, a landed estate, or an office, the grant is to be construed favourably to the grantee. 111y, In offices that relate to the administration of justice, or that require much skill and experience, (as all those do, which I have emumerated) the bearing of the law founded on public expedience, is toward appointment for life, or during good behaviour. Harcourt v. Fox, 1 Show. ub. sup. and 4 Mod. Rep. 169. 174. 9 Co. Rep. 97. Sir &eorge Reynel's case : the reasoning arguendo in Veale v. Priour, Hardress, 351. Deverell’s case, in 2 Anstr. 6:20,621. That most of the offices I have enumerated, are considered as of great public consequence, appears from the requisites by law annexed to them. They require bond to be entered into for the due performance of the duties: previous residence within the county or district is required of the candidate : they are declared incompatible with the holding of offices under the United States. Would a man be required to have these qualifications, and to make these sacrifices for a tenure that may be put an end to at any moment? Moreover in the case of a Prothonotary or Clerk of a court, it is often three or four years before he can receive fees enough to support his family: they lie over till the event of the suit. Is it reasonable that a man should take an office of this description pro hac vice 2 In the case of Avery v. the Inhabitants of Tyringham, 3 Massach. Rep. 160, the court unanimously held ...that the contract with a minister for an indefinite period, was a contract for life with the usual condition of good behaviour, and that he could not be turned out at will. Otherwise, no man of adncation would

accept the office. - --,

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